S. S. BYAS, J. - (1.)THIS is a jail appeal by accused Anna against the judgment of learned Additional Sessions Judge, Udaipur dated January, 30, 1979 convicting and sentencing the appellant as under :- S. No. Offence Sentence awarded 1. 302, I. P. C. Imprisonment for life with a fine of Rs. 1000/-, in default of the payment of fine to further undergo six months simple imprisonment. 2.201, I. P. C. Three years' rigorous imprisonment with a fine of Rs. 500/-, in default of the payment of fine to further undergo two months simple imprisonment. 3. 3/25, Arms Act. One year's rigorous imprisonment.
(2.)IN all three persons viz. , (1) Lala, (2) Heera and (3) appellant Anna were tried in Sessions Case No. 45/1978 by the learned Additional Sessions Judge, Udaipur.
Briefly stated, the prosecution case is that at about 8. 00 A. M. on 1-1-1978 co-accused Heera appeared at Police Station, Ogna district Udaipur and verbally lodged report Ex. P 14. It was stated therein that accused Anna had committed the murder of one Lala son of Dewa Garasiya of village Padmaveri in a night nearly before six days. The death was caused by accused Anna with a fire-arm. It was further stated therein that the dead body of Lala was thrown away in the jungle by him, Anna and Lala. The police registered a case under sections 302 and 201, IPC. Accused Heera was arrested then and there. In consequence of the information furnished by him, the deadbody of victim Lala was recovered from the jungle near the hills. Accused Anna was also arrested and in consequence of the information furnished by him, one gun was recovered, for which he had no licence. The Investigating Officer Sabir Ali (PW 7) prepared the inquest report of the victim's deadbody. He also seized the bloodstained clothes of the victim. The post-mortem examination of the victim's deadbody was conducted on January 2, 1978 by PW 1 Dr. S. S. Jhala. One lacerated wound caused by a gun shot was found on the victim's left temporal bone above the ear. In. the opinion of Dr. Jhala, the cause of death was head injury due to gun shot The report prepared by him is Ex. P 1. One metallic pellet was taken out from the victim's head. It was seized and sealed and was sent to the Investigating Officer. On the completion of investigation, the police submitted a challan against the appellant Anna and two other namely Lala and Heera in the Court of Munsif and Judicial Magistrate, Kotra, who in his turn committed the case for trial to the court of Sessions. The case came for trial before the learned Additional Sessions Judge. He framed charges under sections 302 and 201, IPC and 3/25 of the Arms Act against the appellant Anna while under section 201, I. P. C. against the remaining two Lala and Heera. The accused pleaded not guilty and faced the trial. The defence taken by the accused was that of complete denial. During trial the prosecution. examined seven witnesses and filed some documents. In defence the accused examined one witness. On the completion of trial, the learned Sessions Judge found no incriminating material against accused Lala and Heera to connect them with the disposal of the deadbody. They were, therefore, acquitted. The charges against the appellant were found duly proved. He was consequently convicted and sentenced as mentioned at the very out-set.

We have heard the learned Amicus curiae and the learned Public Prosecutor. We have also gone through the case file carefully.

It was not argued nor could it be argued that the death of victim Lala was homicidal in nature. Dr. S. S. Jhala (PW 1), who conducted the autopsy of the victim's deadbody stated that the cause of death was the gun shot wound on the head. His opinion is not open to any challenge.

It was vehemently contended by the learned Amicus curiae that the conviction of the appellant was bad and unsustainable. It was argued that the conviction was made on the basis of the testimony of PW 2 Mana and PW 3 Birma. According to them they had seen the actual occurrence but they remained silent nearly for 6 or 7 days and did not lodge the report to the police. No reliance could be placed on the testimony of these two witnesses. In reply, the learned Public Prosecutor made all the attempts to impress that the testimony of these two witnesses is sufficient to seek the conviction of the appellant. We have taken the respective submissions into consideration.

(3.)NEEDLESS to say that the entire prosecution case rests on the testimony of PW 2 Mana and PW 3 Birma, each of whom has claimed to have seen the occurrence PW 2 Mana deposed that in the night between Monday and Tuesday he, Birma (PW 3) and the deceased-victim Lala started together in the search of one missing bullock of Lala. While searching they reached the field of Heera (co-accused ). There they found the missing bullock. The appellant and Lala (co-accused) were standing near the bullock. The deceased Lala asked them to return his bullock to him. Thereupon accused-appellant Anna fired a shot from his gun at the deceased-victim Lala. Lala fell down. The shot hit him on his head. The accused persons threatened him and Birma and asked them to go away. The witness further stated that he and Birma returned from there and went to the victim's wife Smt. Moongli (PW 6 ). They apprised her of the incident. The same version of the incident was given by PW 3 Birma. It may be mentioned that the victim Lala was his real paternal uncle. PW 3 Smt. Moongli deposed that her husband Lala went in search of the missing bullock alongwith Birma (PW 3) and Mana (PW 2 ). In the morning, Birma and Mana came to her and informed her that her husband was gunned down by the appellant.
According to both the eye witnesses PW 2 Mana and PW 3 Birma, they had seen the occurrence and they were with the deceased-victim and yet none of them went to police station to lodge the report and remained silent for nearly for six days. They disclosed this matter only when the police came to make the investigation. It may be recalled that the First Information Report was lodged on 1-1-1978 whereas the occurrence is alleged to have taken place nearly 6 or 7 days before. Had these two witnesses seen the occurrence, they would have never remained silent and must have reported the matter to Police. Ex. P 14 shows that the Police Station is only at a distance of 11 or 12 miles from the place of occurrence. The occurrence is said to have taken place near village Ambawa where both these witnesses reside. The fact that they did not lodge the report to the Police and remained silent for a very long time suggests that in face, they had not seen the occurrence and their claim to be an eye witnesses of the occurrence is false and unfounded. Their conduct is highly unnatural and inexplicable. They do not appear to be truthful witnesses. It would be clearly unsafe to accept their testimony as of intrinsic material worth. The learned Sessions Judge was not justified in accepting the testimony of these two witnesses specially when there was no corroboration.

It is also doubtful that the bullock of the deceased-victim had missed and these two witnesses accompanied him to search out the missing cattle. No report of the missing of bullock was lodged to police by the deceased-victim. That suggests that the entire story of missing the bullock was falsely introduced to give a colour of reality to the prosecution case. At any rate, it is difficult to maintain the conviction of the appellant on the testimony of PW 2 Mana and PW 3 Birma.